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Dismissal of Challenge to Texas City’s Sex Offender Restrictions Reversed

Dismissal of Challenge to Texas City’s Sex Offender Restrictions Reversed

by Matt Clarke

The Fifth Circuit Court of Appeals has reversed the dismissal of a challenge to the constitutionality of a city’s sex offender residency restrictions.

In 2008, Lewisville, Texas enacted an ordinance prohibiting registered sex offenders whose offenses involved a minor from establishing a residence within 1,500 feet “of any premises where children commonly gather.” That included public and private schools, public parks and playgrounds, public and semi-public swimming pools, public or non-profit recreation facilities, day care centers and video arcades.

Aurelio Duarte was convicted of online solicitation of a minor, sentenced to eight years in prison and subsequently released. His family lived in Lewisville, where his daughters were enrolled in school. His wife worked nearby and they wanted to remain in the city.

Mrs. Duarte began looking for suitable housing even before her husband was released from prison. On nine occasions she contacted the Lewisville Sex Offender Registry to check whether houses she was interested in purchasing were outside the areas prohibited by the ordinance. Six were within prohibited areas and two sold before she received an answer. She was told not to purchase the last one until Mr. Duarte was free, as a day care might open within 1,500 feet which would make it prohibited.

When Aurelio Duarte was finally released, the only non-prohibited housing the family could find was a 275-square-foot, one-bedroom motel room on the service road of the interstate highway. Persistent efforts to find other housing failed. The Duartes filed a civil rights action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the city’s ordinance. The federal district court dismissed their claims for lack of standing and alternatively as moot, because after filing suit the Duartes had moved to a nearby town.

On July 22, 2014, the Fifth Circuit rejected the district court’s dismissal of Mrs. Duarte and the children for lack of standing as they were not registered sex offenders, because the dismissal overlooked the “practical impact” of the ordinance on the family. To live together and comply with the ordinance, the Duartes had to reside in a motel and ultimately move away from Lewisville. “Therefore, the ordinance interfered with the Duartes’ lives ‘in a concrete and personal way’ which the Supreme Court has held is sufficient to confer standing.”

The Court of Appeals also rejected the district court’s finding that Aurelio Duarte lacked standing because he was never prosecuted under the ordinance.
“[I]t is not necessary that [Mr. Duarte] first expose himself to actual ... prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights,” the Court wrote. It also noted that the Duartes need not prove that the ordinance alone prevented them from purchasing or renting every possible house in Lewisville. Instead, they needed only to show that the ordinance “treats them differently” by making it “more burdensome” to rent or purchase a home.

The difficulties in finding a home were traceable to the ordinance, and the fact that the Duartes moved to a nearby city after filing suit did not moot the case (they also sought monetary damages, which precluded a finding of mootness). The record indicated the ordinance vastly reduced the number of homes available for the Duartes to rent or purchase and that they had actively tried to find a residence in Lewisville. Therefore, the judgment of the district court was reversed; the case remains pending on remand and is scheduled for a jury trial in July 2015. See: Duarte v. City of Lewisville, 759 F.3d 514 (5th Cir. 2014).

Related legal case

Duarte v. City of Lewisville


 

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